Supplemental Information on for the periodic review by the Committee on the Elimination of All Forms of Discrimination Against Women by International Planned Parenthood Federation European Network, Laiga - Libera Associazione Italiana Ginecologi per Applicazione Legge 194, Vita di Donna and the Center for

June 2017

1. Introduction

The International Planned Parenthood Federation European Network (IPPF EN), Laiga - Libera Associazione Italiana Ginecologi per Applicazione Legge 194, Vita di Donna and the Center for Reproductive Rights, respectfully present this submission to the Committee on the Elimination of All Forms of Discrimination Against Women (the Committee) in advance of its periodic review of Italy’s compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This submission highlights concerns regarding Italy’s compliance with its obligations under Articles 2 and 12 of CEDAW as a result of its failures to ensure that health-care personnel’s refusals to provide care on grounds of conscience (conscience-based refusals) do not jeopardize or delay women's access to safe and legal abortion services.

In its list of issues, the Committee asked Italy to provide information about the regulatory framework on conscience-based refusals of care and on measures taken to ensure that women can access legal abortion services in a timely manner, that doctors have a duty to provide information about where legal abortion services can be obtained, and that conscience based refusals remain a personal decision rather than an institutional practice. The Committee also requested further information on the monitoring of conscience-based refusals of abortion services.1 This submission provides information regarding these issues, clarifies aspects of the Government’s responses to the Committee’s questions, and highlights relevant ongoing regulatory, implementation and oversight shortcomings that continue to jeopardize women’s access to legal abortion services. Section 2 provides an overview of Italian law and regulations concerning abortion and conscience-based refusals. Section 3 describes the manner in which in practice state authorities have failed to ensure such refusals do not undermine women’s access to legal abortion services. Section 4 outlines the impact that these failures have on women in practice. Section 5 summarizes relevant international human rights law and standards.

1 Committee on the Elimination of Discrimination against Women, List of issues and questions in relation to the seventh periodic report of Italy, U.N. Doc. CEDAW/C/ITA/Q/7, para. 17. 1

All of the shortcomings detailed below were recognized by the European Committee of Social Rights in two decisions against Italy in which it held that the Italian authorities’ failures to effectively regulate and monitor conscience-based refusals of care gave rise to violations of women’s rights to health and non-discrimination under the European Social Charter.2 However, the Italian Government has yet to adopt effective measures to implement those decisions and bring its law and practice into line with its international human rights obligations.

2. Domestic Regulation of Abortion and Conscience-Based Refusals of Care

Act No. 194 of 1978 outlines that a woman in Italy can legally access abortion services during the first 90 days of if she is of the view that continuing the pregnancy would have serious consequences for her health or her economic, social or family circumstances. The law imposes a seven-day mandatory waiting period between when a doctor authorizes an abortion and when the procedure can be performed. After the first 90 days of pregnancy abortion is legal when there is a serious threat to a woman’s life or to her physical or mental health. 3

Conscience-based refusals to provide legal abortion services are regulated by Article 9 of Act No. 194 which provides that, on grounds of personal conscience, health-care personnel may refuse to take part in abortion procedures, except where there is an imminent danger to the life of the woman.4 The law only permits health-care personnel to refuse to provide care specifically intended to terminate a pregnancy; they may not refuse to provide care prior to, or after, the procedure, or associated care such as anesthesia.5 The law requires health-care personnel to register their refusal to perform legal with the health authority.6

The law also specifies that hospitals and authorized health centers (hereafter public health facilities) must ensure that women are able, regardless of any conscience-based refusals of care, to access legal abortion services in practice.7 Regional authorities have an explicit legal duty to guarantee the availability of non-objecting health-care personnel in all public health facilities, including, if necessary, by moving relevant personnel to ensure the provision of legal abortion services.8 However, the law does not specify the concrete measures that regional and federal authorities should adopt to ensure that women can access legal abortion services in practice. This lack of guidance is accompanied by the absence of guidelines and procedures intended to facilitate women’s access to legal abortion services in practice.

2 International Planned Parenthood Federation – European Network (IPPF EN) v. Italy (2014), Decision of the European Committee of Social Rights on Complaint No. 87/2012); Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Decision of the European Committee of Social Rights on Complaint No. 91/2013 (2016). 3 In particular, the Act states that “In order to undergo termination of pregnancy during the first 90 days, women whose situation is such that continuation of pregnancy, childbirth or motherhood would seriously endanger their physical or mental health, in view of their state of health, their economic, social or family circumstances, the circumstances in which conception occurred or the probability that the child would be borne with abnormalities or malformations, shall apply to a public counselling centre [...] or to a fully authorised medical social agency in the region or to a physician of her choice.” (Art. 4), and that “the voluntary termination of pregnancy may be performed after the first 90 days: a) where the pregnancy or childbirth entails a serious threat to the women’s life; b) where the pathological processes constituting a serious threat to a women’s physical or mental health, such as those associated with serious abnormalities or malformations of the fetus, have been diagnosed.” See Act No. 194 of 1978, Art. 9, para. 6. 4 Act No. 194 of 1978, Art. 9, para. 5. 5 Act No. 194 of 1978, Art. 9, para. 3. 6 Act No. 194 of 1978, Art. 9, para. 1. 7 Act No. 194 of 1978, Art. 9, para. 4. 8 Id. 2

As outlined in detail in Section 3, these regulatory shortcomings are compounded by serious failures to ensure compliance with the law in practice. Together they routinely undermine women’s timely access to legal abortion services, compelling them to travel to seek abortion services in other parts of the country or in foreign countries, undergo clandestine abortions, or carry the pregnancy to term. These impacts are described below in Section 4.

3. Implementation and Oversight Failures to Ensure Conscience-Based Refusals Do Not Jeopardize Women’s Access to Legal Abortion Services

Despite provisions in its law requiring that regional and federal authorities ensure that conscience-based refusals of care do not undermine women’s access to legal abortion services, Italy has failed to take effective measures to implement and enforce these provisions and ensure that throughout the country legal abortion services are available and accessible to women in a timely manner.

(a) Failures to ensure adequate numbers of non-objecting medical personnel throughout the country

Official data clearly shows an insufficient number of non-objecting health-care personnel available to provide legal abortion services.9 According to the most recent annual report from the Italian Ministry of Health on the implementation of Act No. 194, the national proportion of gynecologists refusing to provide legal abortion services has increased from 58.7% in 2005 to 70.7% in 2014.10 There are significant regional disparities and, according to the latest data which was collected in 2013, in some almost 90% of health-care personnel refuse on grounds of conscience to perform legal abortions.11

As a result of these very high rates of conscience-based refusals, certain hospitals do not provide abortion services to women within the first 90 days of pregnancy, contrary to their legal obligation under Act No. 194. The latest data from the Ministry of Health confirms that legal abortions are only provided in 59.6% of public health facilities and indicates a reduction in the number of facilities performing legal abortions.12 This means that 40% of all public health

9 Ministero della Salute, RELAZIONE DEL MINISTRO DELLA SALUTE SULLA ATTUAZIONE DELLA LEGGE CONTENENTE NORME PER LA TUTELA SOCIALE DELLA MATERNITÀ E PER L’INTERRUZIONE VOLONTARIA DI GRAVIDANZA, (LEGGE 194/78) DATI DEFINITIVI 2014 e 2015, (Hereinafter Ministry of Health 2016 report on implementation of law 194/78), p. 44. See also http://www.salute.gov.it/imgs/C_17_pubblicazioni_2552_allegato.pdf and http://www.salute.gov.it/imgs/C_17_pubblicazioni_2552_ulterioriallegati_ulterioreallegato_0_alleg.pdf, Table 28. 10 During this period the percentage of objecting anaesthesiologists increased from 45.7 % in 2005 to 48.4% in 2014, while the percentage of objecting non-medical personnel increased from 38.6% in 2005 to 45.8%. See http://www.salute.gov.it/imgs/C_17_pubblicazioni_2552_ulterioriallegati_ulterioreallegato_0_alleg.pdf. Table 28. 11 According to the latest data from the Ministry of Health in 2013 the proportion of registered gynecologists who refuse to provide legal abortions was a follows by region: 88.1% in Basilicata, 89.7% in Molise, 89.1% in and 85.9% in Bolzano. This represented a significant increase on rates from 2011: 85.2% of gynecologists in Basilicata refused to provide legal abortions, while the rates were 83.9% in Molise, 81.7% in Sicily, and 81.3% in Bolzano. See http://www.salute.gov.it/imgs/C_17_pubblicazioni_2552_ulterioriallegati_ulterioreallegato_0_alleg.pdf, Table 28. 12 Ministry of Health 2016 report on implementation of law 194/78, p. 4. 3 facilities are failing to comply with Act No. 194 which requires every facility to guarantee the availability of abortion service at all times.

Evidence also demonstrates that very few hospitals in Italy provide abortions after the first 90 days of pregnancy making it exceedingly difficult for women whose health or lives are at risk later in pregnancy to access legal abortion services.13

High rates of conscience-based refusals also mean that in some locations legal abortion services are not provided during certain periods, for example when non-objecting doctors are sick or on vacation, and as a result, women must wait until the doctor returns.14 In some hospitals, legal abortion services could no longer be provided after the only non-objecting doctor retired or died.15

In its reply to the list of issues the Government asserts that “the large number of objectors in absolute terms is not a significant factor in evaluating the availability of abortion services: the number of non-objectors who perform abortions has remained stable. Their number needs to be assessed in relation to the number of abortions carried out.”16 The Government’s line of arguments has been rejected by the European Committee of Social Rights in its 2016 ruling, which noted that the there is no data available on the number of requested abortions that have not been carried out due to the lack of available providers.17 The Government’s comparison of the number of objecting doctors against the number of abortions performed says nothing about the impact of conscience-based refusals on women’s access to legal abortion services in practice.

(b) Failures to establish an effective referrals system

In its list of issues the Committee inquired about measures taken to ensure that doctors and hospitals when refusing abortion services on grounds of conscience have an obligation to provide information about where such services can be obtained.

Under the current law there is no duty on doctors or hospitals to provide such information. Act No. 194 does not oblige health-care personnel when refusing abortion care on grounds of conscience to refer the woman to other health care providers or facilities where legal abortion services are provided. As such, there is no referral system in place to ensure that when women are refused legal abortion services on grounds of conscience they are referred in a timely manner to a facility of medical professional who will provide the care. Establishing an effective referral system is critical for ensuring women’s timely access to legal abortion services in Italy.

Furthermore, there is currently no official or centralized source of information for women who are seeking access to legal abortion services. Instead some civil society organizations provide women with information about where they can access legal abortion services both in Italy and abroad.

13 Decision on the European Committee of Social Rights on the Complaint No. 87/2012 International Planned Parenthood Federation – European Network (IPPF EN) v. Italy (2014), para. 107. 14 Id., para. 110. 15 Id. 16 List of issues and questions in relation to the seventh periodic report of Italy, Addendum, Replies of Italy, U.N. Doc. CEDAW/C/ITA/Q/7/Add.1, para. 121. 17 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013 (2016), para. 187. 4

As a result of these shortcomings, women may have to approach multiple doctors and health facilities before finding a doctor willing to perform a legal abortion. For example, in March 2017, a woman approached 23 hospitals before she was able to locate a doctor willing to perform a legal abortion.18

(c) Oversight and enforcement failures

In many hospitals gynecologists, anesthetists and non-medical personnel refuse on grounds of conscience to provide pre- and post-abortion care to women although Italian law does not permit the refusal of these forms of care.19 The Government has failed to enforce the law and prevent health-care personnel from refusing to provide such care to women. It is unclear whether any measures have been taken to ensure that such breaches of the law are sanctioned.

(d) Shortcomings in monitoring of the practice of conscience-based refusals

In its list of issues the Committee also inquired about whether a monitoring mechanism on the practice of conscience-based refusals exists.

Between 1997 and 2013, the Government collected annual official statistics on the number of doctors who had registered their conscience-based refusal to provide abortion services with the health authority. However, since 2013 the Government no longer collects this data. This means that it is no longer possible to assess the scale of conscience-based refusals in Italy, or the distribution by region or city to understand where women are likely to face difficulties accessing legal abortion services.

Furthermore, it is important to point out that the Government does not collect data necessary to an assessment of any obstacles that women may encounter in accessing legal abortion services in practice. There is no official data on the number of requested abortions, the number of women who have encountered refusals of care, or the number of women who have had to travel to access abortion service.20 The collection of official data on the provision of abortion services is exclusively based on forms filled in by public health facilities regarding abortions actually performed.21

(e) Failures to address abortion stigma and its chilling effect

The high level of stigma surrounding abortion in Italy generate a punitive and stigmatizing environment that undermines effective implementation of Italy’s and that further deters medical personnel from providing legal abortion services. Due to the large numbers of

18 See e.g., http://www.thedailybeast.com/articles/2017/03/06/italy-needs-abortion-doctors.html; https://www.thelocal.it/20170303/italian-woman-forced-to-go-to-23-hospitals-to-have-an-abortion. 19 Refusals to provide care that fails to comply with the requirements set out in Article 9 of the Act is subject to liability under Article 328 of the Criminal Code. The Civil Court of Ancona in 1979 ruled in the case of a cardiologist who refused on grounds of conscience to perform an electrocardiogram that preceded an abortion. The court held that the health care provider can only refuse "activities indissolubly linked, in spatial and chronological and technical sense to the abortive intervention", considering the electrocardiogram not a connected activity because theoretically the woman can still decide not to have an abortion. The cardiologist was convicted. See Pret. Ancona, 9 ottobre 1979, in Giur. it., 1980, II, 184 ss. In 1983, the District Court Penne condemned the refusal of some midwives to perform activities related to disinfection and found their refusal of care to fall outside the scope of the law. See Pret. Penne, 6 dicembre 1983, in Giur. it., 1984, II, 314. 20 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013 (2016), para. 187. 21 Ministry of Health 2016 report on implementation of law 194/78, p. 8. 5 conscience-based refusals, most abortions in Italy are performed by a small number of doctors. According to independent research these doctors often experience harassment, discrimination, isolation, psychological pressure and even threats of criminal prosecution (following denouncements by objecting colleagues and ultra-conservative groups).22

4. Conscience-based Refusals Result in Multiple Harms to

The Italian authorities’ failure to ensure that conscience-based refusals of care are not allowed to jeopardize women’s timely access to legal abortion services harms women’s health and well- being in a number of ways:

 Government estimates indicate that around 15,000 Italian women undergo clandestine abortions every year and in addition at least 5,000 foreign women undergo clandestine abortions in Italy. 23 These numbers are likely to be underreported. Given that legal abortion by law should be accessible to all women residing in Italy the high numbers of clandestine abortions are a clear indicator of the difficulties women face in accessing legal services. The number of women presenting at hospitals with spontaneous abortions and miscarriages is increasing and this is believed to be linked to increases in women seeking clandestine abortions.24 The Government’s response to the increase in clandestine abortions has been to impose heightened administrative sanctions on women who undergo clandestine abortion.25 A recent legislative decree decriminalized illegal abortions but introduced heightened administrative fines of between €5,000 and €10,000 for women who have had a clandestine abortion, replacing a previous symbolic fine of approximately €50.

 As a result of the barriers women face in accessing legal abortion services in Italy many women, especially those seeking legal abortions after the first 90 days of pregnancy, travel to other European countries to access abortion services and bear the financial, and other, burdens this entails. However, there is no official data on the number of